Industrial Acceptance Corp. Ltd. and Canadian Acceptance Corp. Ltd. v. Canada Permanent Trust Co. / In re Smith and Hogan, Ltd., [1931] SCR 503

Supreme Court of Canada

Industrial Acceptance Corp. Ltd. and Canadian Acceptance Corp. Ltd. v. Canada Permanent Trust Co. / In re Smith and Hogan, Ltd., [1931] S.C.R. 503

Date: 1931-06-23

In the matter of the Estate of Smith and Hogan, Limited, Authorized Assignor.

Industrial Acceptance Corporation Limited, and Canadian Acceptance Corporation, Limited

Applicants;

and

The Canada Permanent Trust Company, Trustee Respondent.

1931: June 20; 1931: June 23.

ON APPEAL FROM THE APPEAL DIVISION OF THE SUPREME COURT OF NEW BRUNSWICK

Bankruptcy—Application to judge of Supreme Court of Canada for special leave to appeal—Time for application—Extension of time—Jurisdiction—Bankruptcy Act, R.S.C. 1927, с. 11, ss. 163 (5), 174; Bankruptcy Rules 68-73.

There is no power given to any judge, under the Bankruptcy Act (R.S.C. 1927, c. 11) or Bankruptcy Rules, to extend the time fixed by Bankruptcy Rule 72 within which to apply to a judge of the Supreme Court of Canada for special leave to appeal to this Court.††

Section 163 (5) of the Act does not apply to appeals, but only to acts or things to be done before the Court in Bankruptcy in the exercise of its original jurisdiction.

[Page 504]

APPLICATION for special leave to appeal from the judgment of the Appeal Division of the Supreme Court of New Brunswick[1] dismissing an appeal taken from the judgment of Barry, C.J.K.B., sitting in bankruptcy[2], dismissing an appeal taken from the decision of the Trustee of the estate in bankruptcy, disallowing claims of the appellants in so far as appellants claimed to be secured creditors under certain conditional sale agreements.

On July 30, 1930, Smith and Hogan, Limited, made an authorized assignment under the Bankruptcy Act. The respondent was elected trustee of the estate in bankruptcy. Each of the appellants filed with the trustee a proof of claim as a creditor of said Smith and Hogan, Limited, in which proof of claim it claimed to be a secured creditor in a certain sum ($5,541.16 in the one case, $2,057.84 in the other) at which it valued its security on certain automobiles under certain conditional sale agreements entered into by it with the said Smith and Hogan, Limited. The trustee notified each appellant that it disallowed its claim to be secured in respect of the automobiles as a conditional vendor. Each of the appellants then appealed from such disallowance to the Judge sitting in Bankruptcy. As in each case the facts were similar and the points of law at issue substantially the same, the appeals were consolidated on the hearing before the judge. The appeal came before Barry, C.J.K.B., who upheld the disallowance2. The appellants appealed to the Appeal Division of the Supreme Court of New Brunswick, which dismissed the appeal without costs1. The date of the order of the Appeal Division was April 24, 1931.

On application to Barry, C.J.K.B., as the Judge sitting in Bankruptcy, he on May 19, 1931, granted an extension of the time for applying to a judge of the Supreme Court of Canada for special leave to appeal to this Court from the judgment of the Appeal Division. The extension granted was until June 23, 1931.

The application for special leave to appeal to the Supreme Court of Canada (now in question) came before Cannon J. on June 20, 1931.

L. A. Forsyth K.C. for the applicant.

Nigel B. Tennarit for the respondent.

[Page 505]

Cannon J.—Section 163, par. 5, of the Bankruptcy Act does not apply to appeals but only to acts or things to be done before the Court in Bankruptcy in the exercise of its original jurisdiction. Appeals are dealt with separately in section 174—and Bankruptcy rules 68 to 71, 72 and 73. Rule 68 provides specifically for an extension by a judge of the court of original jurisdiction of the delay of ten days to serve notice of appeal to the Appeal Court, but rule 72 contains no such provision permitting, by any judge, the allowance of further time after the thirty days delay within which a judge of the Supreme Court of Canada has jurisdiction to receive an application for special leave to appeal to this Court. In this case, the Court of Appeal of New Brunswick rendered judgment on the 24th of April, 1931. This application, made on the 20th of June, 1931, comes too late, as the extension of delay granted cannot give me a power or jurisdiction expressly restricted by a statutory rule of Practice.

The application is therefore dismissed with costs.

Application dismissed with costs.

Solicitor for the applicants (appellants): W. Arthur I. Anglin.

Solicitors for the respondent: Inches & Hazen.